Njeri Rutledge and Geoffrey S. Corn
For months there has been a call for justice for Breonna Taylor, the young black woman who was killed by police at her home during the execution of a search warrant that led to a tragic confrontation with Breonna’s boyfriend. Justice is an elusive principle that seldom means satisfaction. Many of those seeking justice have specifically demanded that the three officers who fired their weapons all be charged with murder or manslaughter. The grand jury that reviewed the evidence saw it differently, however. The recent announcement that they have charged a single officer, Brett Hankison, with gratuitous endangerment of Taylor’s neighbors, has been met with dismay and disappointment.
The frustration and anger over this decision is understandable. No one can question the tragedy of this loss of life. But it is essential that the public assess this news through the proper prism, and it is the prism of due process that demands that guilt must be based on evidence, and that the evidence must be strong enough to rebut the presumption. law of innocence beyond a reasonable doubt.
Search warrants are powerful and lawful
A search warrant is a powerful tool, issued to police officers only after the information they present to a judge indicates a reasonable probability that they will find what they want to look for. It allows the police to enter, snoop and sometimes destroy. A search warrant issued by a judge must be based on probable cause. This important piece of paper gave the police the power to come to Breonna Taylor’s home and force entry. In short, the officer who was shot on entering the apartment was legally there. The officers relied on the warrant. It is their job, and when faced with gunfire or the threat of lethal force, they are justified in responding in kind. Taylor’s boyfriend didn’t realize who the intruders were and felt he had to act in self-defense. While this might have provided him with a defense had he been accused of shooting the officer, it in no way negated the police justification.
Based on the evidence, the grand jury determined that the use of force by the two officers at the home was legally justified self-defense. Even though the gunfire from the officers killed Breonna, because they returned gunfire, they are not legally responsible for his tragic death. Second, while the grand jury concluded that Constable Hankison’s use of force was indiscriminate and reckless, the medical and forensic evidence did not indicate that any of his shots actually killed Breonna. Without this evidence, it would be impossible to convict Hankison of criminal homicide.
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Thus, the evidence explains the indictment by the grand jury of Hankison for a felony far from criminal homicide. Unlike the two officers who exchanged gunshots with the boyfriend in the apartment, Hankison allegedly walked around the side or balcony of Taylor’s first-floor apartment and shot blindly in a door- window and a covered window. His indiscriminate shots penetrated the walls of neighboring apartments, one of the bullets entering the house of a pregnant neighbor. Unlike his fellow officers, the grand jury concluded that Hankison’s indiscriminate use of force was reckless and unwarranted.
The grand jury’s decision was fair, but disappointing for many
The grand jury seems to have made the right choice, albeit disappointing for many. All charges against the other officers would likely fail, which several legal experts have already noted. Unsurprisingly perhaps, the opinions of experts have been drowned out by public dismay at what at first glance seemed reckless and outrageous. But in the final analysis, there is insufficient evidence to prove murder or manslaughter beyond a reasonable doubt.
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Breonna Taylor’s death was a tragedy, and to some extent so was the officer’s injury. Both were victims of a fatal error. But that does not mean that justice demands to condemn the police for having acted within the limits of the law. Of course, there have been cases where the police have not faced legal consequences for illegal behavior, but this case is different. The grand jury’s decision reinforced the importance of accountability while recognizing that the police also have a right to self-defense. Law enforcement agencies should review their warrant execution procedures to minimize the risk that others will fall victim to this type of tragic mistake in the future. If his death results in a review of the law and the policies that enabled this tragedy in the first place, then justice – albeit imperfect – would be served.
Njeri Rutledge is a former prosecutor and works as a professor of law at South Texas College of Law Houston and as an associate judge for the city of Houston. Follow her on Twitter: @NjeriRutledge. Geoffrey S. Corn is Presidential Law Research Professor at the South Texas College of Law Houston in Houston, Texas. His teaching and research focus on the law of armed conflict, national security law, criminal law and procedure, and prosecution ethics.